Evidence submitted with the State’s Application for Limited Remand in 2016

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On 22 August 2016 the State filed a Conditional Application for Limited Remand. This asked that if Adnan’s cross-appeal was granted, the Court of Special Appeals (COSA) would interrupt that process and first send the case back to the Circuit Court as the State wanted to present “new” evidence.

Explainer

During an appeal the courts are only supposed to consider evidence that is already on the record or “matters of law”. New information (such as Asia McClain saying that Kevin Urick misrepresented her, or Abraham Waranowitz saying no-one told him of the “unreliable for location” instruction) has to be heard in a Circuit Court first. Here, “remand” means sent back to the earlier court and the idea is that Court is then given the opportunity to remedy the situation itself, before the higher court passes judgement on their judgement.

The State alleged that two sisters from Woodlawn High School have recently come forward to say they had knowledge in 1999 that Asia intended to lie for Adnan. Included with the application was an “Attachments” document. On its face the document was not easy to navigate, so we made this wiki page devoted to explaining that one file.

COSA did not publish this document immediately, but it was made public after the State provided a copy to Justin Fenton of the Baltimore Sun. The following year COSA did publish a copy when the prosecutor Vignarajah included this entire filing (and only this filing) as an appendix in the main COSA appeals process, although strangely COSA didn’t publish any of the other defense appendices from that stage and this one contained multiple pieces of evidence that had not been through the process which would put them in the official evidentiary record for Adnan’s case, and he had had no right of response in court.

We don’t know what the COSA judges thought, but the Application must have been rejected, simply because the case did not go back to the Circuit Court. Neither COSA, the State’s prosecutor Vignarajah, nor the Baltimore Sun (who were very prompt with all positive aspects of the State’s case) published the Order which must have accompanied this decision, nor commented or reported on the State’s failure.

Index of individual documents

The files making up the Attachments are listed below using the descriptions from the State’s cover pages, but with a few additions for clarification. If a copy was already on the wiki we have linked to that, rather than hosting multiple copies of the same files. Attachments 1, 2 and 3 are not part of the Court of Special Appeals record but all other documents already were. So the annotation NEW here means new to the public (and most of the media). More details about this and some other observations about this file are discussed below.

We’ve linked the individual documents from the text of the State’s “attachment cover sheets” but added a few notes, to show where there are duplicates, or [shown in square brackets].

Attachment 1

Page 1

1. Email correspondence from Affiant 1, July 7, 2016 (1 page) [alternate version in Att. 2] NEW

Attachment 2

Page 3

1. Affidavit of Affiant 1, August 4, 2016 (2 pages) NEW
2 Facebook Chat, McClain & Affiant 1 (1 page) NEW
3 Photographs of handwritten letter, 1996 (3 pages) NEW
4 Facebook Group Chat, McClain, Affiant 1 & Affiant 2 (1 page) NEW [repeated in Att. 3]
5 Email correspondence to State, July 7, 2016 (2 pages) NEW [actually 1 page, an alternate version of Att. 1]

Attachment 3

Page 12

1. Affidavit of Affiant 2, August 4, 2016 (2 pages) NEW
2. Facebook Group Chat, McClain, Affiant 1 & Affiant 2 (1 page) [repeated from Att. 2] NEW
3. Facebook Chat, McClain & Affiant 2 (1 page) NEW

Attachment 4

Page 17

1. State’s Notice of intent to File Application for Leave to Appeal and Request to Stay Order Granting Post-Conviction Relief, July 21, 2016 (2 pages)
2. Order Staying Grant of Post-Conviction Relief (1 page)

Attachment 5

Page 21

1. [Extract from] Post-Conviction Testimony of Adnan Syed, October 25, 2012 (8 pages)
2. [Davis] Billing Summary for Adnan Syed, 3/2/99 – 3/31/99 (1 page) (A-0374) [repeated in Att. 12] NEW
3. [Gutierrez and Martin] Billing Summary (Syed, Adnan), 4/7/99 – 6/27/99 (2 pages) (A-0369 – A-0370)
4. Correspondence from Gutierrez, 7/7/99 (3 pages) (A-0004 – A-0006) (3 pages) (A-0004 – A-0006) NEW
5. Amended State’s Disclosure, 7/8/99 (2 pages) (A-0007 – A-0008) NEW

Attachment 6

Page 38

1. Handwritten letter from Asia McClain, 3/1/99 (2 pages) (Ex. 4) [sticker from 2010 petition]

Attachment 7

Page 41

1. Typed Letter of Asia McClain, dated March 2, 1999 (3 pages) (Def. Ex. 6) [sticker from 2012 hearing]
2. Handwritten Flohr Note to File, March 6, 1999 (1 page) (A-0351)
3. Defense Memo to Gutierrez, August 21, 1999 (3 pages (A-0150 – A-0152) NEW
4. [Extract from] Detective Notes, Ja’uan G Interview, April 9, 1999 (1 page) (B-0133)
5. Affidavit Ja’uan G, February 7, 2016 (2 pages) (PC2-60)
6. Attorney Notes to File, updated August 4, 1999 (1 page) (A-0145) [repeated in Att. 8] NEW
7. Documents Related to Search Warrants. NEW*
[Only the generic descriptions (shown in italics) are from the State’s cover sheet: additional numbering and descriptions showing which selection of possible documents were provided by the State for each “warrant” added by wiki editors.
* These documents weren’t entirely new, all were in the first BPD MPIA file but were (unusually) properly and comprehensively redacted, (as they should have been by law) so that there was nothing left to read. Warrants etc. relating to Jay Wilds’ hair and blood samples were not provided and there is no evidence any of his residences were ever searched by police.]

7.1. First Search of Adnan’s Vehicle

Page 53. Search on March 9, 1999, at BPD Headquarters, E Fayette St

Documents Related to Search Warrant [Adnan’s] (Vehicle), March 9,1999
B-0076 – B-0077, B-0117, B-0120 – B-0122) (6 pages)

- 1) Detective’s Progress Report B-0076 – B-0077, written April 27, 2 pages
- 2) Application for Warrant B-0117 NEW, undated and unsigned, 1 pages
- 3) Affidavit in support of warrant B-0120 – B-0122, undated and unsigned, 2 pages
- 4) Warrant return B-0122, dated and signed, 1 pages, NEW

7.2 Search of Adnan’s Family Residence

Page 59. Search on March 20, 1999 at Johnnycake Rd, Catonsville, Baltimore County

Documents Related to Search Warrant [Adnan’s] (Residence), March 20, 1999
(B-0123-B-0127) (5 pages)

- 1) Warrant Application B-0123, unsigned and undated, 1 page, NEW
- 2) Warrant B-0124, unsigned and undated, 1 page, NEW
- 3) Affidavit in support of warrant B-0125, B-0126, unsigned and undated, 2 pages, NEW
- 4) Warrant return B-0127, dated and signed, 1 page, NEW

7.3. Second Search of Adnan’s Vehicle

Page 64. Search on March 25, 1999, at Baltimore City Towing Lot, 6700 Pulaski Highway

Documents Related to Search Warrant [Adnan’s] (Vehicle), March 25,1999
(B-0087, B-01 15-B-0116,B-0118-B-0119) (5 pages)

- 1) Detective progress report B-0087 (written April 27) (1p)
- 2) Warrant B-0116, unsigned and undated, 1 page, NEW
- 3) Application B-0115, unsigned and undated, 1 page, NEW
- 4) Affidavit B-0118 – B-0119, unsigned and undated, 2 pages, NEW

7.4 Adnan Syed’s Person, (blood and hair samples)

Page 69. Search on March 25, 1999, at Mercy Hospital

Documents Related to Search Warrant (Syed’s Person), March 25, 1999
(B-0086, B-01,1,2) (2 pages)

- 1) Detective progress report B-0086, written 26 March, 1 page, NEW
- 2) Affidavit B-0112, unsigned and undated, 1 page, NEW

Attachment 8

Page 71

1. Police Report of Investigation, February 14, 1999 (1 page) (B-0003) [This is a backdated County report of the 25 Jan interview of Adnan. State used p1 only, link is to 2 page original]
2. Defense Memo to Gutierrez, August 25, 1999 (1 page) (A-0153) [repeated in Att. 12]
3. Handwritten Account by Syed of January 13, 1999, [corresponding to Defense Memo to Gutierrez, above](1 page) (A-0154)
4. Attorney Notes to File, updated August 4, 1999 (1 page) (A-0145) [repeated from Att. 7]
5. Defense Task List, September 4, 1999 (6 pages) (A-0261 – A-0266) [one page is repeated in Att. 9] NEW

Attachment 9

Page 82

1. Notice of Alibi, October 4, 1999 (3 pages) (Exhibit 1) [sticker from 2012 hearing] UNREDACTED COPY
2. Handwritten Task List, undated (1 page) (A-0695) NEW
3. Defense Memo to Gutierrez, December 15, 1999 (1 page) (A-0230) NEW
4. Page 4 of Defense Task List, September 4, 1999 (1 page) (A-0264) [State repeated from Att. 8, link is to full 6 page document]
5. Detective Notes, Virginia Madison Interview, March 24, 1999 (2 pages) (B-0247 – B-0248)
6. [Extract from] Detective Notes, Cheryl Metzger Interview, March 24, 1999 (1 page) (B-0251) [State used p1 only, link is to 2 page original]
7. Defense Memo to Gutierrez, October 12, 1999 (4 pages) (A-0189 – A-0192) NEW
8. Defense Memo to Gutierrez, January 15, 2000 (2 pages) (A-0234 – A-0235)

Attachment 10

Page 98

1. [Extract from] Detective Notes, Inez Butler Interview, March 23, 1999 (2 pages) (B-0191, B-0193) [State used p1&3 only, link is to 6 page original]
2. Police Report of Investigation, February 14, 1999 (1 page) (B-0006) [This is a backdated County police report of the 28 Jan interview of Debbie W. State used p1 only, this link is to 2 page original]
3. [Extract from] Trial Testimony of Debbie Warren, February 17, 2000 (4 pages)
4. Undated Defense Notes, undated (1 page) (A-0775)

Attachment 11

Page 107

1. Correspondence from Syed’s Parents, March 30, 2000 (1 page) (Ex. 6) [sticker from 2010 Petition]

Attachment 12

Page 109

1. [Extract from] Instructions to the Jury, February 25, 2000 (4 pages)
2. [Defense PI Davis] Billing Summary for Adnan Syed, 3/2/99 – 3/31/99 (1 page) (A-0374) [repeated from Att. 5]
3. Defense Investigator Note, September 3, 1999 [Jay refuses to speak to Davis] (1 page) (A-0359) NEW
4. [Extract from] Trial Testimony of Jay Wilds, February 4, 2000 (3 pages)
5. Defense Memo to Gutierrez, August 25, 1999 (1 page) (A-0153) [repeated from Att. 8]
6. [Extract from] Detective Notes, Nisha T Interview, April 1, 1999 (2 pages) (B-0138, B-0140) [State used p1&3 only, link is to 7 page original]
7. Defense Investigator Note, March 11, 1999 (1 page) (A-0360)
8. [Extract from] Trial Testimony of Yaser Ali, February 3, 2000 (5 pages)
9. [Extract from mis-]Trial Testimony of Sharon Watts, December 13, 1999 (5 pages)
10. [Extract from] Statement of Judge Wanda Heard at Sentencing, June 6, 2000 (2 pages)

Observations about the Attachments file

The structure of the Attachments file is not straightforward. It contains 60 documents in total, but instead of being listed individually, it is presented as 12 “Attachments” or groups of documents and it is these “Attachments” that are cited in the accompanying legal filing. Each one contains between one and 21 separate documents, and five documents are repeated. Although there are Attachment cover pages which list the documents within them, there is no overview, no page numbering, no contents page and no index: nothing to help you find the document/s you want.

Many, but not all, pages have markings such as A-0369 or B-0118. These are not page numbers for this exhibit and they don’t appear in order. A bit of cross referencing confirmed those codes relate to two folders of evidence from the PCR hearing in Feb 2016. Folder A is the files of defense attorney Gutierrez and Folder B Baltimore Police files, likely a subset or rearrangement of the MPIA files, because they don’t actually match those page numbers either. The defense file also included some notes by Chris Flohr, one of Adnan’s bail attorney which would have been passed over to Gutierrez when she took the case.

Neither Police files nor Attorney notes are normally admissible in court, but according to reports from the PCR hearing, the State successfully argued that the public dissemination of the police files, and Undisclosed’s use of some of Gutierrez’ files meant that had effectively been waived. Unfortunately the coverage we have of Folder A is very patchy, because although the whole folder was on display at the PCR hearing, there were (presumably, if the page numbering theory above is correct) hundreds of pages, and although the attending press did share photos of many documents, they were not able to share every single page, despite the public interest. A small selection of other pages from Folders A and B can be found in a later State exhibit.

The State’s Remand brief and exhibits are, nominally, intended to persuade COSA that there is sufficient strong new evidence to deserves a Remand to the Circuit Court. (Instead of just getting on with a retrial where the State could also, easily, bring up any “new” evidence?) Intriguingly these Attachments mark a turning point in the State’s publication strategy. They contained 60 separate documents, which outnumbers any earlier appeal filing (max 7), but also earlier State filings tend not to include documents which are established as part of the Court record. The largest previous State Exhibits file, accompanying the Sept 2015 Consolidated Reply has just 5 exhibits but references 19 already-on-the-record files. In these Remand Attachments, only 1-3 are not already in the COSA record, just 8 files, or 11 / 122 total pages (ignoring the 12 cover sheets). Those 11 pages were also new to the public, and featured heavily in subsequent press coverage.

Taking a look at the Attachments from another perspective, 20 files or 41 / 122 pages were revealed here for the first time to the public and press, although they were already on the Court record (i.e. not the new to the relating to the Sisters). So, in terms of audience novelty, these Attachments have nearly four times as many pages directed purely at the public/press as were directed at the nominally intended audience, the Court of Special Appeals, who were only allowed to consider them in relation to the request for Remand, as they are only supposed to consider evidence that has already been considered by the primary court system. And yet COSA helped Vignarajah to publish them again the following year as an tangentially related “appendix” to his appeal filings against Adnan’s retrial, when they did not publish the appendices of evidence submitted by the defense. Strange.

One other page had been tweeted, then deleted by Justin Fenton in Feb 2016, the same journalist who published this file for the State and also many other filings including, somewhat surreptitiously, the State Brief that combined their Appeal Reply and Cross Appeal (Appellee response) filings to COSA.